After SCOTUS DNA Ruling, What Changes For Police?

Transcript

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. In Maryland, police routinely swab the cheeks of everyone arrested for a serious crime to check their DNA against a database. Civil rights advocates argue that amounts to a warrantless search and a violation of the Fourth Amendment. Earlier this month, the Supreme Court disagreed.

In a five-to-four decision, the court described the practice as a reasonable search, which, like fingerprints and photography, can help identify suspects, especially in cold cases. Across the country, many local law enforcement agencies are now building their own DNA databases with swab samples from arrestees and other sources, including victims.

And after the Supreme Court ruling, many more will likely follow suit. We want to hear from those of you in law enforcement: public defenders, prosecutors, judges. How does this change what you do? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, the elections in Iran, but we begin with Fred Harran, the director of public safety for the Bensalem Township Police Department in Pennsylvania. He joins us by phone from his office there. Nice to have you with us today.

FRED HARRAN: Thank you, nice to be here.

CONAN: And practices, I know, vary from jurisdiction to jurisdiction. Do you collect DNA samples in Bensalem?

HARRAN: We do. We've been doing it for about three years now.

CONAN: And on what basis?

HARRAN: We're collecting DNA samples from individuals that we ask DNA from voluntarily. Either they're in custody or suspects of a crime.

CONAN: Voluntarily? That's a key word.

HARRAN: That is the key word.

CONAN: So if they say no, nothing happens bad?

HARRAN: If they say no, that's the end of it.

CONAN: So are fingerprints voluntary?

HARRAN: Fingerprints are collected at time of arrest. We could ask for fingerprints to eliminate a suspect, or if they wanted to give it up voluntarily, if we have fingerprints from a crime scene, that has happened too. So DNA is nothing more than just another tool in the toolbox for law enforcement. It's just that a lot of people just aren't familiar with it. So they get a little scared about it.

CONAN: And what percentage of the people you asked voluntarily actually then submit the DNA?

HARRAN: I would say a large percentage, probably somewhere between 80 and 90 percent give up their DNA.

CONAN: And is a large percentage of those people who are, as you say for fingerprints too, well, we want to exclude you from the crime scene, so if you give us your DNA, we'll know you are not - we'll know your samples are ones that are supposed to be there, it's a burglary of your house, for example, and anybody else whose DNA shows up shouldn't be there?

HARRAN: That's correct.

CONAN: OK, and are those samples then all preserved?

HARRAN: They're preserved unless the individual asks us to destroy them. Then we do.

CONAN: So there is an opt out?

HARRAN: Correct, of course there is an opt out, yes. It's not - it's not mandatory. It's all voluntary.

CONAN: It's all voluntary. So given that, and given the Supreme Court decision earlier this month, do you think this stands up to constitutional muster?

HARRAN: Well, it doesn't matter what I think. Five to four thought it did. I think it does anyway, but I'm certainly glad that's what the justices did, but we were - our program really wasn't what the Supreme Court decision was about.

CONAN: I'm sorry?

HARRAN: Our program - the Supreme Court decision, and I'm certainly not a lawyer, was more about taking it not voluntarily from people that are in custody. We're taking it prior to being in custody. A lot of times we're using it for investigative tools.

CONAN: And has it been useful in solving crimes?

HARRAN: It absolutely has been.

CONAN: Can you give us an example?

HARRAN: Certainly. In, you know, in Pennsylvania there's a law called constructive possession, which means basically if there's a package of marijuana or a package of cocaine in the middle of the car, and there's four people there, and all four say it's not mine, it's possible that all four could be arrested for it.

We actually had a real situation like this, where everybody said that the drugs weren't theirs. They all gave up their DNA, and we were able to put the drugs on one of the individuals. So actually three people didn't get charged that may have been charged.

CONAN: And I wonder, have you solved cold cases with this?

HARRAN: We call them blind head cases, yes, where today an individual is picked up from a chain store or a box store for theft or retail theft. Of course he or she is not going to go to jail for any length of time. And then two weeks from now there's a burglary, and the individual that committed the burglary leaves either some sort of fluid or touch DNA behind.

DNA is collected from that scene, goes into our databank, and the next thing you know the DNA from today's burglary matches the individual we had in custody two months ago for a totally unrelated crime. And yes, we've had about 125, 130 good hits on DNA. And remember, our program has only been in existence three years.

The key to these programs are the database.

CONAN: And how big is it?

HARRAN: We probably have about 3,000 people in our database right now.

CONAN: And do you coordinate with databases - you're not far from Philadelphia, for example.

HARRAN: Right now it's a little difficult to coordinate with other municipalities. And I'm not - again I'm not a lawyer, but there's some laws that preclude some of that. And we absolutely can't cross state lines with our database. But we are trying to work at(ph) other databases in the commonwealth of Pennsylvania.

CONAN: Let's see if we can get some callers in on the conversation, 800-989-8255. Email us, talk@npr.org. We want to hear from those of you who work in any aspect of law enforcement. How does DNA collection, now green-lighted by the Supreme Court, how is that changing the way you do your work? And we'll start with David and - if I can push the button properly, there we go, David's on the line with us from Oklahoma City.

DAVID: Yeah, hi, how are you guys today?

CONAN: Good, thanks.

DAVID: Well, I'm actually a criminal investigator for the United States military. And we've used it for some time. And I'll be honest with you, it's actually worked out in the favor of several individuals as far as we've taken DNA and - on certain individuals who have been accused of some crimes. Probably about 80 percent of our individuals have been cleared because of their DNA on file, you know, accused of the crime they were.

We ran their DNA through a database, and it's actually worked out in their favor. It saved the taxpayers a lot of money. Instead of going through a lengthy process and doing the DNA and getting everything on trial and prosecution, we've cleared about 80 percent of our individuals arrested on certain crimes, just off this alone.

CONAN: And is there a federal database of DNA?

DAVID: There is a federal database. Of course in the Privacy Act of 1974, it's protected. It doesn't go public. In some cases we will share it with civilian municipalities if certain court orders are, you know, in effect. And there are certain laws that even regulate what we can't transfer, certain information through the civil counterparts of law enforcement.

But we try to work hand in hand with every local district attorney's office and state facilities and so forth. You know, we do the best we can. So I'll be honest with you, just - I've been an investigator for about 27 years, and this thing has actually revolutionized, you know, the way we look at crimes committed and how we research them, and prosecutions.

You know, there's very little room for error. There's always going to be some room, but the good definitely outweighs the bad, I mean and it really does.

CONAN: And just a question: How long does it take to process this DNA?

DAVID: Our facilities take about an hour and a half, depending on certain individuals. There's different facilities that can work a little bit faster and in some cases a little bit slower, but about an hour and a half for us to get the initial DNA specimens in the system and then get a good file on it. But of course when a crime is committed, individuals are accused, at that point we could take up to, you know, 72 hours or even longer if we need to, just to verify that that is specifically, exactly the individual that, you know, we're looking at. So...

CONAN: Fred Harran, do you have that same kind of equipment there in Bensalem Township?

HARRAN: Well, we - it's funny he mentions that. We're actually in the process of looking into the same type of equipment that the military possesses, where it would give you an hour and a half, a 90-minute turnaround DNA. Right now we submit our DNA to a lab, and we get our, we get our DNA results anywhere from 48 hours to 30 days back, normally about two weeks, which is fine the way we have it.

We're actually looking at equipment now that'll give us a 90-minute turnaround. There's other logistical issues with that for us that the military probably doesn't have to deal with. So right now it's just something that we're looking at, that same equipment.

CONAN: OK, David, thanks very much for the call, appreciate it.

DAVID: You bet.

CONAN: Joining us now is Stephen Mercer, chief of the Forensics Division for the Maryland Office of the Public Defender. He joins us by phone from Rockville, Maryland. Nice of you to be with us today.

DAVID: Thank you.

CONAN: And Maryland, of course, is where the Supreme Court took its case from and made this decision. So this is going to absolutely validate what the state police there have been doing.

STEPHEN MERCER: It does.

CONAN: And so what is this going to change?

MERCER: Well, the Supreme Court decision, by being based on this notion that this search is about identification, is really going to green-light the continued expansion of DNA. And what the particular area that we're concerned about, among others, is the proliferation of unregulated, local DNA databanks that are being operated by local police departments.

These databases are not subject to any statutory restrictions, for example about who goes into the database, how the information is used, how long it's retained and how it's distributed. And so largely under the radar, these databases are growing.

And the full implications of these databases are not fully known at this point.

CONAN: Would you expect that they are going to become - we heard, for example, the director of public safety there in Bensalem, Fred Harran, say that he's not permitted under laws in that state and that town to share with other municipalities?

MERCER: Well, I'm not sure about Pennsylvania law. I can tell you that generally, for example in Maryland and many other states, these local police department databanks are not subject to the safeguards that exist with respect to what we call the CODIS database. And so these local databanks really operate in the shadow of the state and national databases, which are regulated.

So for example, there's no statutory rules with respect to most of these local databases about who the police can put in the database. It's simply their own self-imposed restrictions. There's no law or statute that governs how those DNA samples may be used and whether the police ever have to get rid of them.

CONAN: Fred Harran, is that an accurate description of your situation?

HARRAN: To some degree, but so what? I mean we're not - it's not like we're doing - you know, the tests go to a certified lab, the DNA. Those samples, they populate the database. We're not populating the database; the laboratories are populating the database from the information that we're giving them. It's all sealed. It's all chain of custody. So there's no issues.

The fact is that finally law enforcement is trying to get ahead of the criminals, and people come out against it. I would think that defense attorneys and other organizations would embrace this type of program because, as you heard in the case I gave you with the four subjects that in Pennsylvania could have been taken into custody, three people were let go. A defense attorney should say, wow, this is a great thing for us too.

CONAN: Well, we'll hear more from the defense attorney in just a minute and find out why they may not think this is all that great sometimes. We'll also hear more from those of you who work in law enforcement. How is this DNA database checking changing the way you do business now that it's been approved by the Supreme Court? 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION. I'm Neal Conan. This month's Supreme Court decision that allows police to collect DNA samples from people arrested for a serious crime can be traced back to 2009. That's when a man named Alonzo King was arrested in Maryland on assault charges. Police, following state law, swabbed his cheek for a DNA sample, ran through a database.

King's DNA matched evidence from a rape six years earlier. With the DNA swab as evidence, King stood trial for that rape and was sentenced to life in prison. That conviction was later thrown out. The Maryland Court of Appeals ruled that the DNA collection had nothing to do with the initial assault charges against King. It was, they concluded, little more than a fishing expedition.

The Supreme Court earlier this month disagreed, and the conviction has now been reinstated. We want to hear from those of you in law enforcement: public defenders, prosecutors, judges. How does this change what you do? 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION.

Our guests are Fred Harran, director of public safety for the Bensalem Township Police Department in Pennsylvania; and Stephen Mercer, chief of the Forensics Division for the Maryland Office of the Public Defender. And Stephen Mercer, just before the break, Fred Harran was saying, well, in many cases DNA, well, gets - proves that the defendants are not guilty.

MERCER: What I'm hearing is a very dismissive attitude towards any concerns about privacy of DNA information. And I'm also hearing that coupled with an attitude that more people in the databank are better. So what does that mean? That means that the more samples that can be collected, whether they're collected at a traffic stop or whether they're collected from a homeowner whose house has been burglarized, there's no statutory rules that govern what the police do with those samples.

They put them in a databank, and I think many people would be concerned about their genetic information being put into a law enforcement databank, particularly if they've been the victim of a crime, their house has been burglarized, and the police have asked for a DNA sample so that the police lab can figure out, well, when we swabbed the doorknob or the window for DNA, we want to be able to subtract out from the mixture the homeowners DNA.

That's all well and good, but then the police then can put that into a databank. And so now a crime victim ends up in a law enforcement databank.

CONAN: They also take fingerprints for the same reason, to exclude people who are there legitimately. They hold on to those fingerprints, too. What's the difference?

MERCER: Actually the fingerprint database operates very differently, and - than a DNA databank does. And I think when we talk about fingerprints, you have to understand that there are built-in safeguards when fingerprints are used as a means of biometric identification. First of all the information, when it's collected, the person who it is being collected from knows that their fingerprints are being collected.

Number two, when that information is collected, it's exhausted. In other words when that fingerprint is rolled, there's no further information to extract from that fingerprint impression. DNA is very different. People may not even realize that their DNA has been collected, or if it has been collected for use as an elimination sample, they're probably not aware that it's being put into a databank that's operated by law enforcement and that they will continue indefinitely to be in that databank under genetic surveillance.

And there is more information not only in the profile but in - of course in the DNA sample itself. For example in Baltimore City, the police collect DNA from deceased victims of homicides, and then they put those DNA samples into a databank. The only purpose for having that DNA in a databank is so that at some future point the police can search that databank for any relatives of those deceased persons.

And so this whole downstream opportunity to mine DNA for additional information is really not being understood at this time as police departments build these local databanks under the radar.

CONAN: And just want to get another caller in on the conversation. Let's go to Maggie(ph), Maggie with us from McCloud in Oklahoma.

MAGGIE: Right.

CONAN: Go ahead, please.

MAGGIE: Yes, my daughter was raped and suffocated in '04, and about - within six months of investigating her murder, they found DNA, and now we're heading towards the ninth anniversary, and we still haven't found her killer. And I've been trying to push, along with Senator Jolley here in Oklahoma, to get DNA at arrest and trying to educate people about the only harm is does is it leaves these predators out to hurt our, you know, loved ones.

It's an investigative tool, and I was so happy when the Supreme Court, you know, ruled as they did because it just, it saves lives. It takes offenders off the road, off the streets, you know, within a couple of years of the first time they're offending. And, you know, this is crazy that, you know, that at year nine we still haven't found her killer when we have DNA from two sources of the same person.

CONAN: Maggie, we're so sorry about what happened to your daughter. That's a terrible thing to do, and it's a terrible thing to know that there's definitive evidence of - that identifies her killer and that it's not - you really can't find what it is.

And Fred Harran, that's an example of a case where DNA, if there was a cold hit as you describe it, well a blind hit I think that was the word you used, could make a huge difference.

HARRAN: Correct, and again I'm also very sorry for your loss. I can't imagine. But I don't...

MAGGIE: Thank you, and...

HARRAN: And I don't understand why, you know, attorneys and some other folks are afraid of this. It's just another tool in our toolbox of crime-fighting. As technology changes, and our - we have the means to do other things. Why would we - why would we not? I mean, are you going to be part of the same group that believes, you know, the world was flat and that Columbus would fall off? I mean, it's kind of silly.

We've got to evolve with the times. We're not, we're not doing anything with this database. If people want to take their information out of the database, we're more than happy to do that. It solves a lot of crime, and I believe also, as time goes on, a lot of people that may have been charge with a crime, it's going to prevent them from being charged with a crime.

I think we're afraid because - and not this particular individual because he's a forensic individual, but I think a lot of the general public is just afraid of it because maybe what television has done to it. When we go out to a crime scene, and we taken DNA from a burglary scene or a theft, the local public is amazed that we're doing that and we have that kind of capabilities at a local law enforcement level.

I just think it's a great tool, and I'm going to use every tool that's - until the Supreme Court or somebody tells me we can't use it - every tool that's at our disposal, I'm going to use it to get criminals off the street and to prevent - my job is to prevent future crimes from happening, and I'm going to use that to do that.

CONAN: Maggie, you were trying to say something, I'm sorry.

MAGGIE: Hello?

CONAN: Yes, I thought I heard you try to say something.

MAGGIE: Yeah, I was - just wanted to say that, you know, what I'd want, too, is that the majority of the crimes that DNA helps to solve are the violent crimes against women and children. And I'm a psychologist. My daughter was a chemistry major. And this can happen to anybody. You know, my daughter was the girl next door, and I think people really need to educate themselves about the safety of using a tool like this and how it does save lives.

HARRAN: Agreed.

CONAN: Maggie, thank you very much for the call, and again, we're sorry for your loss.

MAGGIE: Thank you so much.

CONAN: Let's see if we can go next to - this is Darryl(ph), Darryl's on the line with us from St. Augustine.

DARRYL: Yeah, I actually had exactly this experience that you were talking about. I have a small shop, and it was robbed in the night, and we called the police, and they came out and did the swabs, and they asked for samples from all of myself and my entire staff.

They did not solve the crime, and it was only - and they did not, in my opinion, fully explain that this DNA was going to go into a database for future use. And I feel like now, in effect, the police department, sheriff's department, has a, you know, a DNA of my entire staff. None of us are criminals. I don't think that they have a right to that information. I don't think they fully explained that we're going to keep this DNA and use it for future things.

I mean, who's to say that they don't make a mistake somewhere along the line and say that I'm - that mix up some DNA with some other file, and I'm accused of rape or something else. I don't think that they have the right to take that DNA, and when they did take the DNA, you know, I should be able to say, I want it eliminated.

But they didn't explain it to me properly. They didn't tell me that they were going to keep this in a database. I mean, you know, they have far more with the DNA than my fingerprints. Fingerprints are nothing compared to what the information they have in the DNA, and...

CONAN: Let me ask Stephen Mercer: Is our caller, Darryl, correct to worry that there could be some - I'm not aware of many, if any, cases where I know DNA has been corrupted in various forms but that in laboratory samples have been messed up like that.

MERCER: Oh, it's coming, Neal. Let me - the caller...

CONAN: In other words, it hasn't happened yet.

MERCER: No. It is happening. It's - these cases are in the pipeline now. And you need to understand why. First of all, to the point of him and his staff being in the database, understand that not only are they in the database, but their relatives are in the database too. And so here you have victims of a crime who not only are in the law enforcement database, but in effect, all of their relatives are. And that's because of the power of DNA. But let me make this other point too about accuracy.

I'm talking about samples getting mixed up in the lab. What I'm talking about is that as the types of crimes that DNA is used in expand from the sex assault-type cases where you're dealing with generally very clear samples of DNA, but where you're now collecting DNA from bags of marijuana, from doorknobs, from steering wheels, from gearshifts, what the lab ends up with is a very messy mixture of DNA from multiple people. And because DNA is shared between people and the population, what happens is the DNA loses its power to reliably exclude individuals.

And so this notion that somehow DNA is accurate, more accurate than fingerprints, is absolutely false as we see the types of crimes expanded where DNA is used. And so what ends up happening when you get these messy mixtures from bags of drugs or steering wheels or door handles is that people become falsely included in these DNA mixtures. And people assume because it's DNA, somehow it's accurate, but they're not grasping that this gold standard that was developed in the labs of scientists now that it's been put in the hands of law enforcement is turning into fool's gold.

CONAN: Darryl, thanks very much for the call.

DARRYL: Excuse me, Neal. Can I ask one more question?

CONAN: Sure. Go ahead.

DARRYL: Correct me if I'm wrong, you said they have the DNA of my entire family? So by taking my DNA, if they find my son or my daughter or some other relative's DNA at a crime scene, that they're going to be able to pin my son or somebody even though they didn't give the DNA?

MERCER: Yes.

DARRYL: Is that correct?

CONAN: That's accurate, yes.

MERCER: That's called familial searching, and that's - that is one of the uses that police are being encouraged to use their local DNA databanks for by private companies that are selling software to these police agencies for profit that have what they call enhanced kinship searching tools.

DARRYL: So they not only invaded my privacy, they invaded my entire family and future family's privacy by me voluntarily giving them my DNA? Is that correct?

MERCER: Correct. And as they continue to use DNA in drug-possession cases, property crimes, you're going to see the potential for false inclusion and false matches rapidly increasing.

CONAN: Darryl, thanks very much...

DARRYL: Neal, no - that's insane. That's an insane...

CONAN: Thank you...

MERCER: It's not.

CONAN: Darryl...

MERCER: It's happening now.

CONAN: ...thank you very much for the call. Appreciate it. We're talking about DNA collection by local police departments, just green-lighted under a Supreme Court decision, which ruled that it was not an invasion of privacy. You're listening to TALK OF THE NATION from NPR News. And, Fred Harran, it's important to point out that in your town, Bensalem Township, in Pennsylvania, if Darryl had wanted his sample excluded, that would have been OK with you, and it would have been, and that rules vary place to place a great deal. But given the Supreme Court's decision, do you think that more and more places are going to be developing databases of their own with rules of their own?

HARRAN: Oh, I think more places will start developing databases, but I did want to say that we don't take familial DNA, meaning we don't test for people's family members. It's the very basic markers. It's not medical history and all of those things that, you know, that the big DNA samples. That's not what we're doing. Also, when we do the exclusionary DNA, we don't submit it into the database unless we have to, and it's only to rule them out when we have another suspect. So we don't - we're not taking everybody and throwing them into our database.

I understand the concern that people have but we - and I can only speak for Bensalem, Pennsylvania, that we're taking extreme cautions with it because, you know, as I told my people three years ago, I don't want to be before the Supreme Court with bad case law. It's not going to be on my watch that we make bad case law. So we're very, very careful with it. But I don't want everybody to think that that people are just going crazy taking DNA and having this huge database. That's not the case here.

And I believe that other individual is from Florida, and they have a little bit different rules down there, I guess, in St. Augustine. But in Pennsylvania, you're not going to find that, at least not in Bensalem Township.

MERCER: Well, Neal, I think a key point here, there are no rules when you're at the local level. And that's the real concern here is that any rules are self-imposed. And if the purpose is to solve crime and if the utility of it is defined by solving one crime and there's a dismissive attitude towards any privacy interest...

CONAN: You keep saying this. The Supreme Court just ruled against you. They - the Supreme Court just said this is OK. This is now happening, and it's going to continue to happen. So what's the best way to apply that decision in the future?

MERCER: Well, my point is that the database that was looked at in the King case was a state database that is regulated by state law and as well as the SCOTUS national law. The database that we're talking about here in Bensalem and we're talking about in Baltimore City and other local jurisdictions in Maryland and across the country are not regulated by any statute or not regulated by any law. There's simply the police going out and collecting up DNA, putting it into a databank that in many instances is being operated by private companies who then pool the data so that there are larger and larger databanks, so they're not subject to any of the safeguards that are discussed in the King case.

And the Supreme Court, by buying into this flimflam that this is about identity when there was never any question of identity, and DNA databanks don't identify people the way that fingerprints do are going to green-light the continued expansion of these local databanks that are expanding off the charts and below the radar screen.

CONAN: And we're going to have to end it there. Stephen Mercer, thanks very much for your time today.

MERCER: Thank you.

CONAN: Stephen Mercer, chief of the forensics division for the Maryland Office of the Public Defender. Fred Harran, appreciate your time today too.

HARRAN: No problem. Thank you.

CONAN: Fred Harran, director of public safety for the Bensalem Township Police Department in Pennsylvania. When we come back from a short break, many are already calling Iran's president-elect a reformer and a moderate, but what do we really know about Hasan Rouhani and how he might lead that country. Stay with us. Mike Shuster will join us. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.